rejected the Israeli government’s argument that the “necessity” defense—a provision in
Israeli criminal law that absolves a person of liability if the crime was committed to prevent
serious imminent harm—serves as a basis for advance authorization to use physical
coercion. It did, however, leave open the possibility that Shin Bet interrogators could avail
themselves of the necessity defense if criminally indicted.41
A tragic case involving the kidnapping and murder of an 11-year-old boy in Germany in 2002
illustrates the willingness in Europe to accept, even advocate, police threats of torture and
torture itself in seemingly exceptional circumstances. Believing the boy to be alive, Frankfurt
deputy police chief Wolfgang Daschner ordered a subordinate to threaten the kidnapper,
who had been arrested after he collected the ransom, with severe pain if he did not reveal
the child’s whereabouts. After having been so threatened, Magnus Gäfgen confessed to
kidnapping the boy and told police where to find him.
At Gäfgen’s trial, the Frankfurt Am Main Regional Court excluded the statements he made
following the threat, and while they allowed evidence obtained as a result of those
statements, based his 2003 conviction and life sentence on his admission of guilt at trial. In
December 2004, the same court convicted Daschner of incitement to commit coercion and
the subordinate who carried out the threat of coercion, and sentenced them to suspended
fines. Daschner was subsequently promoted.
At the same time, public figures in Germany sought to justify Daschner’s actions with very
much the same arguments as those adopted by the Landau Commission. The chairman of
the German Association of Judges, Geert Mackenroth said there were cases “in which the
use of torture and the threatening of torture may be allowed, namely if one hurts a legally
protected interest only to protect a higher valued legally protected interest.”42 His view was
echoed by then Federal Justice Minister Brigitte Zypries.43 Jörg Schönbohm, then interior
H.C. 5188/96 Wa’al Al Kaaqua, Ibrahim Abd’allah Ganimat and the Center for the Defence of the Individual v. The General
Security Service and the Prison Commander – Jerusalem.
H.C. 7563/97 Abd Al Rahman Ismail Ganimat and the Public Committee Against Torture in Israel v. The Minister of Defence and
the General Security Service.
H.C. 7628/97 Fouad Awad Quran and the Public Committee Against Torture in Israel v. The Minister of Defense and the General
Security Service.
H.C. 1043/99 Issa Ali Batat v. The General Security Service.
41
Ibid., paras. 33-38.
42
“Greift nach heissen Eisen auch ohen Handschuh: Geert Mackenroth,” Die Welt, February 21, 2003,
http://www.welt.de/print-welt/article405837/Greift_nach_heissen_Eisen_auch_ohne_Handschuh_Geert_Mackenroth.html
(accessed November 10, 2009).
43
“Police Threat Fuels Debate on Torture,” Deutsche Welle, February 24, 2003, http://www.dwworld.de/dw/article/0,,785751,00.html (accessed November 10, 2009).
17
Human Rights Watch | June 2010
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